IN THE CASE OF:	  

		BOARD DATE:	    4 May 2010

		DOCKET NUMBER:  AR20090017527 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his military records to show that he was retired due to a physical disability.

2.  The applicant states that he should have been evaluated by a physical evaluation board (PEB) and then placed on the Retired List due to a physical disability.  The applicant injured his wrist while stationed at Key West Naval Air Station resulting in two surgeries and the wearing of a cast for 2 years.  In September 1993, he went before a medical evaluation board (MEBD) at Fort Stewart, Georgia.  The MEBD found him fit for duty.  He appealed this decision, but because of family problems he withdrew it and tried to save his marriage.  In November 1994, the Department of Veterans Affairs (VA) awarded him a 10-percent disability rating for his wrist.  During the 7-year period ending about August 2000, he had occasional back problems.  The VA reviewed his service medical records and found that he had been diagnosed with back problems which the applicant contends he did not know about.  Had he known about this, he would never have withdrawn his appeal.  In July 2001, the VA awarded him 100-percent disability based on his inability to be employed.  He has not worked since 2001 due to being disabled.

3.  The applicant provides a copy of a radiologic report dated 8 December 1993.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel makes no additional requests beyond that of the applicant.

2.  Counsel states that he represents the applicant and that all correspondence should be addressed to both he and the applicant.

3.  Counsel provides no additional documentation in support of the applicant's request.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 10 October 1984, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 98C (Electronic Warfare/Signal Intelligence Analyst).  The applicant subsequently completed tours of duty in both the Federal Republic of Germany and in the Republic of Korea.

3.  On 11 February 1988, the applicant was promoted to sergeant/pay grade E-5.

4.  On 29 February 1988, the applicant reenlisted in the Regular Army for a period of 6 years.  His new expiration of term of service (ETS) was established as 28 February 1994.

5.  A DA Form 3349 (Physical Profile), dated 25 June 1993, provided the applicant with a permanent physical profile that restricted him from performing pushups or pull-ups.  His profile serial was 1-3-1-1-1-1 which did not allow him to lift more than 10 pounds.  The applicant's MOS required the ability to lift 62 pounds and to carry it a distance of 10 feet.  Accordingly, he was required to undergo a change of MOS and duty assignment.

6.  The applicant's service medical records are not available for review.  There is no evidence in the available military records showing that the applicant's MOS was changed or that he appeared before either an MEBD or a PEB.

7.  Orders 251-00274, Fifth U.S. Army and Fort Sam Houston, Texas, dated 8 September 1993, assigned the applicant to Company A, Military Intelligence Battalion (Low Intensity), Key West, Florida.  Effective 1 November 1993, he was assigned for duty as a signal analyst in MOS 98C.

8.  The radiologic report provided by the applicant indicates that he underwent an examination on 8 December 1993.  The report states that his vertebral body height was normal.  There was grade 1 spondylolisthesis of L5 on S1 [a forward slipping of the lowest lumbar vertebrae on the sacrum].  On the lateral views, defects appeared present, but were not well demonstrated on the obliques.  There were no other abnormalities.

9.  On 28 February 1994, the applicant was discharged.  He had attained the rank of sergeant/pay grade E-5 and had completed 9 years, 4 months, and 21 days of creditable active duty service.  The characterization of his service was honorable.  The narrative reason for his discharge was "completion of required active service."  His reentry code was 1, indicating that he was fully eligible to reenlist without a waiver.

10.  Army Regulation 40-501 (Standards of Medical Fitness), chapter 7 (Physical Profiling), provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):  P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator 1 under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators 2 and 3 indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  Numerical designator 4 indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator 4 does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

11.  Army Regulation 635-40 provides that when a Soldier is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or pay grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit.  This presumption can be overcome only by clear and convincing evidence that the Soldier was unable to perform his or her duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the Soldier unfit.

12.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has an impairment rated at less than 30-percent disabling.  It further provides at section 1201 for the physical disability retirement of a member who has an impairment rated at least 30 percent disabling.

13.  Title 38, U.S. Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfit for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have been evaluated by a PEB and then placed on the Retired List due to a physical disability.

2.  The evidence of record clearly shows that the applicant served his full term of service and was discharged at his ETS.  There is no available evidence showing that he was medically unfit at the time of his separation from active duty.  Even accepting his assertion that he had undergone an MEBD, he acknowledged that he withdrew his appeal of the decision that he was fit for duty.  There is no evidence to show any back problems rendered him unfit for duty.  

3.  An award of a VA disability rating does not establish entitlement to medical retirement or separation from the Army.  Operating under its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military duty, awards ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability and/or social functioning.  Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

4.  In view of the above, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  __X_____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  X_______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090017527



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ABCMR Record of Proceedings (cont)                                         AR20090017527



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